Lowrey v. Lowrey

• Decision Date: 05 November 2009
• Docket Number: No. 2007-CA-01988-SCT.,2007-CA-01988-SCT.
• Citation: 25 So.3d 274
• Parties: Perrin H. LOWREY v. Cynthia Nelson LOWREY.
• Court: Mississippi Supreme Court

25 So.3d 274

Perrin H. LOWREY v. Cynthia Nelson LOWREY.

No. 2007-CA-01988-SCT.

Supreme Court of Mississippi.

November 5, 2009.

Rehearing Denied January 28, 2010.

Thomas T. Buchanan, Laurel, attorney for appellant.

William Matthew Thompson, Mark A. Chinn, Jackson, attorneys for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

¶ 1. Cynthia and Perrin Lowrey were married in 1983, separated in June 2002, and divorced in September 2002. Their union resulted in three daughters, Brittny, born in 1987, and twins, Erin and Emelie, born in 1991. Perrin was a schoolteacher and administrator in the Hattiesburg Public School District from 1975 until his retirement post-divorce. Cynthia was working at Winn-Dixie/Save Rite when the 2007 trial was held. In September 2002, a final judgment of divorce was entered. In March 2003, Cynthia moved for relief from that judgment, claiming that she had been overreached, and that the property settlement she had agreed to was inequitable. Her motion was overruled. Cynthia appealed. See Lowrey v. Lowrey, 919 So.2d 1112 (Miss.Ct.App.2005) ("Lowrey I"). The Court of Appeals affirmed the divorce, but reversed and remanded for further proceedings. Id. at 1119, 1122. The Court of Appeals held that Cynthia had been overreached, relying on a dubious proffer,¹ and found that the property settlement was inadequate and unfair. Id. at 1122. The case was remanded "with instructions to resolve the unresolved matters of child custody, child visitation, child support, property division, and alimony. . . ." Id. On remand, a different chancellor held hearings, issued limited findings of fact and conclusions of law, and entered a Judgment of Custody, Visitation, Support and Equitable Distribution of Marital Property.

¶ 2. The judgment ordered: (1) paramount² physical custody of the three children to Perrin; (2) joint legal custody; (3) visitation for Emelie, Erin, and Brittny; (4) child support in the amount of $200 per month to be paid by Cynthia; (5) periodic alimony for Cynthia of $900 per month derived from the division of a marital asset Perrin's retirement account; and (6) division of home equity and personalty. From that judgment, with the exception of visitation, Perrin appeals and Cynthia cross-appeals.

ISSUES

¶ 3. The issues as filed by Perrin were:

1. THE CHANCERY COURT ERRED AS A MATTER OF LAW IN ITS FAILURE TO CONDUCT A PROPER FERGUSON ANALYSIS AND COMMITTED MANIFEST ERROR IN ITS FAILURE TO PROPERLY ACCOUNT FOR THE WASTE OF MARITAL ASSETS BY CYNTHIA LOWREY.

2. THE CHANCERY COURT ERRED AS A MATTER OF LAW AND COMMITTED MANIFEST ERROR IN ITS AWARD OF ALIMONY, FAILURE [TO] MAKE A PROPER ARMSTRONG ANALYSIS AND THE USE OF A FORMULA FOR AN AWARD OF ALIMONY WHICH IS UNSUPPORTED BY ANY SUBSTANTIAL, CREDIBLE EVIDENCE.

3. THE CHANCERY COURT ERRED AS A MATTER OF LAW AND FACT IN ITS CALCULATION OF CHILD SUPPORT.

4. THE DECISION OF THE CHANCERY COURT GRANTING THE PARTIES JOINT LEGAL CUSTODY OF THE MINOR CHILDREN IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE.

5. THE CHANCERY COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION WHEN IT DID NOT PROVIDE SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUESTED BY PERRIN.

¶ 4. Cynthia's issues on cross-appeal were:

1. THE CHANCERY COURT ERRED IN FINDING DISSIPATION OF ASSETS (MARITAL WASTE) WHEN THE EVIDENCE PROVED NONE.

2. THE ALIMONY AWARD SHOULD BE REVIEWED IN LIGHT OF THE ERRONEOUS FINDING OF MARITAL WASTE.

3. PRIMARY PHYSICAL CUSTODY TO PERRIN WAS ERROR LEADING TO ERROR IN CHILD SUPPORT.

SUMMARY OF ARGUMENT

¶ 5. Perrin contends, inter alia, the following:

The . . . overriding issue involved in each issue . . . is whether a person who refuses to exercise any kind of personal responsibility and engages in destructive behavior—toward themselves, their family, or their children—should be awarded relief by a Chancery Court at the expense of others who do not engage in such behavior and whether or not the innocent parties should be penalized further for such behavior.

In this case Cynthia Lowrey had a gambling addiction so severe that it alienated her from her husband and children, destroyed her relationship with her family and wiped out all of the assets of the parties that were accumulated during the marriage, as well as separate assets of Perrin Lowrey from before the marriage.

. . .

The Chancery Court [then] invented its own formula to award alimony to a person who is employed, has a record of squandering every penny she has ever had on gambling, rather than on her children, and the Chancery Court failed to properly consider the Armstrong factors in its award of alimony.

¶ 6. Cynthia contends, inter alia, the following:

The finding of marital waste was improper. . . . This "waste" was subtracted from the amounts Cindy would have received and impacted, negatively her equitable distribution in excess of $122,000. . . . The Physical Child Custody award to Perrin was not in the best interest of the children. . . . The children need their mother just as Cindy needs a relationship with her daughters. Since there was error in the physical custody . . . there is likewise error in an award of child support.

. . .

[I]n the event the physical custody award is upheld then the support award would be proper and consistent with the proof presented and warranted in light of the circumstance[s] specific to this case.

. . .

[A] Trial Exhibit demonstrated that $122,440.00 in checks were written to casinos out of Cynthia's personal checking account between February 2000 and June 2002. This same amount $122,000 was charged to her by the Chancellor as dissipated assets.

. . .

Both Cynthia and Perrin contributed to the stability and harmony of the marriage until 1995, when problems began.

DISCUSSION

¶ 7. We fully recognize that chancellors are overburdened, and that many cases are tried "piecemeal." Hearings can be, and often are, separated by weeks or even months, as occurred in this proceeding. Chancellors are required to follow the testimony of witnesses, review documents offered as exhibits, and attempt to make contemporaneous notes. Trial judges are not afforded the advantage of appellate courts to review the full record of a case without interruption. Recognition of these impediments is partially responsible for the development of our rules and caselaw requiring findings of fact and conclusions of law that analyze certain factors. Our rules provide parties the right to request chancellors to make specific findings of fact and conclusions of law. Factor tests, such as provided in Ferguson for property division and Armstrong for alimony, must be considered on the record in every case. See Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994); Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993). These factor considerations are not only essential for appellate purposes, but also for trial courts, as they provide a checklist to assist in the accuracy of their rulings. Following these guidelines reduces unintended errors that may affect the court's ultimate decision. The absence of an analysis of these factors and failure to apply the law to the facts at hand create error. Failure to make an on-the-record Armstrong analysis is manifest error. See Henderson v. Henderson, 703 So.2d 262, 266 (Miss.1997); Armstrong, 618 So.2d at 1280.

¶ 8. The minimal findings of fact and conclusions of law regarding equitable division resulting in alimony include findings without support in the record, fail to identify which factors the chancellor considered to be worthy of consideration vel non and, finally, fail to assign weight to the factors considered.

¶ 9. The trial court erred in awarding periodic alimony³ payments from marital assets established as of 2002, relying on events occurring after the date of divorce. Based on a 2006 hearing and the 2007 trial testimony of Cynthia and her psychologist, the chancellor found that Cynthia suffered from physical and emotional ailments, although the psychologist never reviewed Cynthia's medical records, and no physicians testified. The court failed to compel Cynthia to produce medical records (after proper demand) for examination and verification in discovery or use at trial. The resolution date for the division of marital property should be, at the latest, the date of divorce, September 2002.

¶ 10. As the appropriate Ferguson and Armstrong tests were not set out and applied, combined with numerous other errors, we vacate the judgments of the chancellor for equitable distribution of marital assets, resulting in a lump-sum award of alimony, albeit called periodic, and the separate monetary award of $13,250 for equitable interest in the marital home and personalty, and remand for proceedings consistent with this opinion. The chancellor shall enter separate findings of fact and conclusions of law considering every applicable factor required by our precedent. See Ferguson, 639 So.2d at 928; Armstrong, 618 So.2d at 1280.

¶ 11. Regarding child custody, the best interest of the child is the polestar factor. See Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). We find that the chancellor performed an Albright analysis, and that there is substantial evidence to support the chancellor's decision to award Perrin physical custody. See id. However, regarding legal custody, we find that the chancellor applied an erroneous legal standard in granting joint legal custody. We reverse the chancery court and render judgment granting Perrin legal custody, in conformity with the chancellor's findings of fact, per Albright. See id.

¶ 12. Regarding child support, we find that the chancellor deviated from the statutory guidelines without providing a legally-sufficient reason for doing so. See Miss. Code Ann. § 43-19-101 (Rev.2004). Thus, we reverse and remand this issue for consideration by the chancellor consistent with this opinion.

BACKGROUND

¶ 13. The marriage came to an abrupt end when in June 2002, Cynthia revealed not...